Opinion Recap: Hawaii v. Office of Hawaiian Affairs

On Tuesday, March 31st, the Supreme Court issued a unanimous opinion in Hawaii v. Office of Hawaiian Affairs, reversing the Hawaii Supreme Court's holding that the federally enacted Apology Resolution bars the State of Hawaii from selling to third parties any land held in public trust until the claims of native Hawaiians to the lands have been resolved.The Court first held that it has jurisdiction to review the Hawaii Supreme Court's opinion because it rested on the Apology Resolution.It then found the Hawaii Supreme Court's interpretation of the Apology Resolution to be erroneous, and held that federal law does not bar the State from selling land held in public trust.Accordingly, it remanded the case for the Hawaii Supreme Court to determine if Hawaiian law alone supports the same outcome.

Justice Alito, writing for the Court, first rejected respondents' argument that the Court lacks jurisdiction to hear the case because the decision below rested on adequate and independent state grounds.Justice Alito relied on Michigan v. Long, which held that the Court has jurisdiction so long as the "the adequacy and independence of any possible state law ground is not clear from the face of the opinion."Because the Hawaii Supreme Court opinion lacked a plain statement that it rested solely on state law, and instead explicitly relied on the Apology Resolution multiple times, the Court had "no doubt that the decision below rested on federal law," and, thus, that it had jurisdiction to review the Hawaii Supreme Court's interpretation of federal law.

Justice Alito then addressed the Apology Resolution, concluding that it does not strip the State of its sovereign authority to sell the lands granted to the State when it was admitted into the Union.First, Justice Alito concluded that neither of the two substantive provisions of the Apology Resolution justifies the Hawaii Supreme Court's decision.The first substantive provision uses only conciliatory or precatory verbs, not the type of terms that Congress uses to create substantive rights.The second substantive provision merely provides that the Apology Resolution does not serve as a settlement of any claims against the United States.A disclaimer of settling claims against one sovereign, the United States, cannot be read to affirmatively recognize claims against another, the State of Hawaii.

Next, Justice Alito turned to the 37 "whereas" clauses that preface the Apology Resolution, which make various observations about Hawaii's history.Justice Alito concluded that those clauses do not serve as a congressional recognition of native Hawaiians' unrelinquished claims to the land for three reasons.First, as the Court explained in Heller, such preambles do not enlarge the meaning of the substantive provisions of an act, and should only be relied on where necessary to resolve ambiguities in the act itself.Second, the Hawaii Supreme Court's reading of the Apology Resolution would effectively repeal the Admission Act, which ceded the lands at issue to the State.But the "whereas" clauses contain no plain statement of such an intent, and repeals by implication are disfavored.Third, the Apology Resolution would raise grave constitutional concerns if it were read to cloud Hawaii's title to its sovereign land after Hawaii was granted statehood.Therefore, the canon of constitutional avoidance dictates that the Court should look to competing plausible interpretations that do not raise such concerns.

Recognizing that respondents defend the decision below on state-law grounds, the Court remanded the case for further proceedings in light of its interpretation of the Apology Resolution.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.